Boston bombing trial may not happen in Boston

BOSTON — A federal judge declined to rule Thursday on a request from defense lawyers that Boston Marathon bombing suspect Dzhokhar Tsarnaev's trial be moved out of Boston.

Judge George O'Toole instead gave prosecutors a week to respond to the defense's request that the trial be moved to Washington, D.C., where a commissioned survey found potential jurors are less likely than Bostonians to assume Tsarnaev is "definitely guilty."

The defense has cited the 1997 precedent of Timothy McVeigh's Oklahoma City bombing trial, which was relocated to Denver because local prejudice against McVeigh was deemed to be so prevalent as to make a fair trial impossible.

Some court watchers, including Massachusetts School of Law Dean Michael Coyne, expect O'Toole will relocate the trial out of Massachusetts in order to err on the side of caution.

"The defense has presented some pretty strong arguments as to why a transfer out of the Boston area makes sense," Coyne said. "You really would be hard pressed to find someone whom the event hasn't touched and who would be able to be on the jury."

Coyne said a Boston jury could be impaneled and include people with some connections to the April 15, 2013, bombings, which killed three and injured more than 260. But jurors would need to be objective despite personal ties to the injured or to the marathon itself – a tall order in a city that was shut down for an entire day during the manhunt that resulted in Tsarnaev's arrest.

"The problem is that most people want to believe they are fairer than they are," Coyne said.

Tsarnaev's attorneys, led by Judy Clarke, also want the trial postponed until 2015, but O'Toole has thus been unwilling to alter the Nov. 3 trial date. In a prior hearing, the defense said it would be "impossible" for them to prepare an adequate defense for a November trial, given the trial's complexity and the mountain of evidence involved.

Tsarnaev, a Chechen native and naturalized U.S. citizen, faces a 30-count indictment in connection with the two bombings and subsequent manhunt. The U.S. Department of Justice is seeking the death penalty for Tsarnaev.

According to the indictment, Tsarnaev conspired with his late brother, Tamerlan Tsarnaev, to build and detonate two improvised explosive devices as a packed crowd cheered runners crossing the finish line. He is also charged in the death of Sean Collier, an MIT police officer.

Tsarnaev did not attend Thursday's status conference.

The trial will be "very different" from most criminal cases, said Assistant U.S. Attorney William Weinreb, insofar as the defense plans to call multiple witnesses of its own. He said the trial will play out in two phases as each side takes a turn calling its own witnesses. In most criminal cases, he said, the defense does not put on its own case.

Weinreb protested that the defense hasn't given the government an opportunity to review its evidence, including an expert witness list, that's being prepared in Tsarnaev's defense.

"The defense has spent the last 18 months accumulating evidence, yet at no point have they disclosed a single item," Weinreb said.

Defense attorney David Bruck countered that the government has a large amount of information about Tsarnaev, including e-mails and social media communications, and is not entitled to more than it has received.